The Digital Millennium Copyright Act (DMCA) was enacted to protect copyright owners from various forms of infringement in the digital age. It is perhaps most famous for its electronic copyright protection provisions. Those provisions make it unlawful to circumvent technological measures, e.g., encryption, that a copyright owner may use to prevent unauthorized access to music, software, movies and other works of authorship that are stored in an electronic medium.
A lesser known but very significant feature of the DMCA is its ability to be used to thwart online copyright infringement. In the absence of protective measures, information stored in electronic media may be easily reproduced. This exposes Internet Web sites as easy prey to potential infringers. Fortunately, the DMCA has a mechanism specifically designed to address this problem.
The DMCA, as codified in the US Copyright Act at 17 U.S.C. § 512 et seq., empowers owners of copyrighted material displayed online to prevent unauthorized use of such material on other Web sites. An Internet service provider (ISP) may be considered a “contributory infringer” based on infringing acts that are carried out by a Web site that it hosts. Under the DMCA, an aggrieved copyright owner can exert pressure on an ISP that hosts a Web site containing infringing material. However, the DMCA enables an ISP to easily insulate itself from such liability. More particularly, if an ISP designates an “agent of service” with the US Copyright Office that is assigned to receive complaints of online copyright infringement and also complies with the so-called “notice and takedown” provisions of the DMCA, then the ISP will be free from liability as a contributory infringer.
Under the DMCA’s notice and takedown provisions, when a designated agent of service of an ISP receives a good faith notice of copyright infringement regarding information displayed on a Web site hosted by the ISP, the ISP is required to expeditiously remove or disable access to the offending material. If the ISP receives such a complaint and does not act expeditiously to take down the offending material it may be liable to the copyright owner as a contributory infringer. Furthermore, the DMCA insulates a compliant ISP from legal action from the Web site owner whose material is taken down. Since compliance with the DMCA is simple and failure to do so may result in considerable legal liability, the ISP has every incentive to take prompt action to deactivate the infringing material.
Experience has shown the DMCA to be a very powerful weapon in combating online copyright infringement. The author has employed the DMCA on several occasions and, in every instance, the DMCA functioned precisely as designed to successfully and quickly compel removal of clients’ misappropriated copyrighted works of authorship from others’ Web sites.